Assessing Damage, Urging Action Chapter Five: Preventive Mechanisms 1. Introduction The priority for governments in recent years has been for early interventions that will prevent terrorist acts from taking place, rather than merely respond after the event. This chapter will look into the increasing pattern of administrative measures introduced with the stated intention of preventing terrorist acts. The increased use of these measures since 11 September 2001 is closely linked to the extended powers of, and sharing information among, intelligence services (see Chapter Four). In the wake of 9/11, States have introduced or strengthened measures that allow more flexibility in the detention, expulsion and deportation of immigrants; administrative detention; control orders and listing.209 Government representatives met by the Panel frequently stressed the need to take effective measures when intelligence sources suggest that a person may pose a risk to national security, but where the nature of the intelligence is not considered suitable for criminal proceedings. States may rule out the option of using the criminal justice system for any number of reasons: the nature of the intelligence and the desire to keep it secret; the fact that the evidence would not be admissible in court; and/or the evidence does not constitute sufficient proof of a criminal offence. This rationale was clearly expressed to the Panel in its Hearing in London by, amongst others, the then UK Home Secretary Charles Clark.210 States are entitled to take preventive measures against a terrorist act. Indeed, States have a positive duty to protect people within their jurisdiction. Human rights law explicitly allows States to restrict certain fundamental freedoms, to take measures to disrupt terrorist networks, and to prevent terrorist acts from materialising. The Panel considers that, when information is provided about security risks or threats, it is not only reasonable but required that governments take preventive measures. However, it is important that States take preventive measures within the framework set out by international human rights law: limitations on people’s liberties must be provided for by law and cannot be either arbitrary or discriminatory; they must be strictly necessary; and they must be proportionate to the stated purpose (see Chapter One). The Panel is concerned, however, that a number of the preventive measures discussed in the Hearings do not comply with these basic tests. It is important that States, in taking preventive measures, adhere to their obligations under international 209 “Listing” is a relatively new measure that places individuals on lists of terrorist suspects, at national, regional or international levels, often entailing restrictions on freedom of movement, scrutiny of financial transactions, or even confiscation of assets. 210 See oral testimony of Charles Clark, UK Home Secretary, EJP United Kingdom Hearing. 91